40 F.

3d 688
63 USLW 2399

UNITED STATES of America, Plaintiff-Appellee,

v.
Delbert MOBLEY, Defendant-Appellant.
No. 93-5091.

United States Court of Appeals,

Fourth Circuit.
Argued April 14, 1994.
Decided Nov. 23, 1994.

ARGUED: James Christopher Savage, Rockville, MD, for appellant.

Andrew Gerald McBride, Asst. U.S. Atty., Alexandria, VA, for appellee.
ON BRIEF: Helen F. Fahey, U.S. Atty., Marcus J. Davis, Asst. U.S. Atty.,
Alexandria, VA, for appellee.
Before ERVIN, Chief Judge, SPROUSE, Senior Circuit Judge, and
HARVEY, Senior United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in
which Senior Judge SPROUSE joined. Senior Judge HARVEY wrote a
concurring opinion.
OPINION
ERVIN, Chief Judge:

Delbert Mobley was indicted under 18 U.S.C. Sec. 922(g)(1) as a felon in

possession of a firearm. His suppression motions failed, his case proceeded to
trial and he was convicted. The government moved to have him sentenced as a
career criminal under 18 U.S.C. Sec. 924(e). While the court was reluctant to
give such a sentence on the facts of the case, believing it had no choice because
the facts fit the statute, it sentenced Mobley to the mandatory minimum of 15
years in prison. Mobley now appeals on both the suppression matter and the
construction of the armed career criminal provision. For the reasons set forth

below, we affirm.
I.
2

On December 5, 1990, at approximately 8:30 a.m., FBI special agents arrived

at Mobley's apartment in Falls Church, Virginia with arrest and search
warrants. The arrest warrant charged Mobley with conspiracy to distribute
crack cocaine in violation of 21 U.S.C. Sec. 846. According to the government,
both warrants were supported by wiretap evidence and statements of
confidential informants indicating that Mobley was involved in a large-scale
crack cocaine distribution ring centered in Baltimore.

The FBI personnel at the scene were approximately eight, two to arrest
Mobley, and five or six to execute the search of the premises. An agent
knocked on Mobley's door, and he responded from within. The agent identified
himself and indicated that he had a warrant for Mobley's arrest. Mobley opened
the door, and as he did so one of the agents secured him against the wall while
the others made a security sweep of the apartment to see that there was no one
else present. Once they determined that Mobley was alone, the officers seemed
to relax. Mobley had answered the door naked, and it was quite apparent that he
was unarmed. Deborah Martin, one of the special agents assigned to arrest
Mobley, advised him that he was under arrest. He then went into the other
room, apparently under surveillance, and got dressed. After he returned to the
living room area, Martin read him his Miranda rights. Mobley indicated that he
understood his rights, and that he wished to speak to a lawyer.

The detail of what happened next is not exact. At the suppression hearing,
Martin indicated, vaguely, that after this point,

5
there
was general conversation [impliedly with Mobley] about leaving the
apartment, and I also asked him if there was anything in the apartment and
specifically any weapons that were in the apartment that could be of danger to the
agents who would be remaining at the apartment to conduct the search warrant.
6

J.A. 36 (emphasis supplied). At trial, Martin was more precise:

I7 told him, again, we would be leaving the apartment because he was under arrest,
and I indicated that there would be people there who would stay and conduct a
search warrant of his place. At that time I asked him if there was anything in the
apartment that could be of danger to the agents who would be staying to conduct the
search warrant, such as a weapon.

J.A. 101. In response to the question, Mobley stated that there was a weapon in
the bedroom closet on one of the shelves, and he led the agents to it.

Mobley eventually was indicted on two counts involving drugs in the District
of Maryland, and proceeded to trial on November 4, 1991. He was acquitted on
both counts on April 10, 1992. Having lost the first round, the government
came back for a second round. On July 22, 1992, the Grand Jury for the
Eastern District of Virginia returned an indictment in one count against Mobley,
charging him as a felon in possession of a firearm in violation of 18 U.S.C. Sec.
922(g)(1). Mobley filed a number of pretrial motions, including a motion to
suppress for violation of Miranda v. Arizona and its progeny based on Martin's
question as to whether there were any dangerous devices or guns in the house
following Mobley's election to claim his right to counsel. The motion was
denied, under the reasoning that the question fell within the "public safety
exception" enunciated in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626,
81 L.Ed.2d 550 (1984).

10

Mobley went to trial on the felon in possession charge and was convicted.
Having provided proper notice, the government moved to have Mobley
sentenced under the armed career criminal provision of 18 U.S.C. Sec. 924(e)
(1). Application of this sentence enhancement provision was based on Mobley's
three prior felony convictions in the District of Columbia under its broad
"robbery" statute, D.C.Code Sec. 22-2901. The third of these convictions was
essentially a pickpocketing offense, and Mobley argued that it did not fit the
statutory definition of a violent felony. The district court rejected the approach
urged by Mobley (and adopted by the D.C.Circuit) in a published opinion,
United States v. Mobley, 818 F.Supp. 164 (E.D.Va.1993), and sentenced him to
the mandatory minimum of 15 years.

II.
A.
11

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
the Supreme Court established a prophylactic procedural shield to support
every citizen's Fifth Amendment right against compelled self-incrimination.
Part of this shield is the requirement that, prior to any custodial interrogation,
the police advise the individual that he has the right to remain silent and the
right to the presence of an attorney. Id. at 479, 86 S.Ct. at 1630. In Edwards v.
Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court held
that, where a person subject to the Miranda requirements claims his right to
speak to an attorney, the accused

12not subject to further interrogation by the authorities until counsel has been made
is
available to him, unless the accused himself initiates further communications,
exchanges, or conversations with the police.
13

Id. at 484-85, 101 S.Ct. at 1884-85. In the present case, it is clear that Mobley
had exercised his right to speak to an attorney prior to Martin's questioning
regarding the presence of a weapon on the premises, and that, absent some
exception, the rule of Edwards would require a court to suppress this statement.
In response, the prosecution argues that there is an applicable "public safety"
exception to the rule of Edwards. This is a question of first impression in this
circuit.

14

In New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984),
two police officers on patrol encountered a woman who stated that she had just
been raped by a man with a gun, and that he had gone into a nearby grocery
store. The police entered the store and saw a man fitting the suspect's
description approaching the check-out counter. When the suspect saw the
police, he dropped his items and fled into the aisles. When he was caught and
frisked, it was discovered that he had an empty shoulder holster. Before he was
advised of his Miranda rights, the police asked him where the gun was, and he
indicated to them where he had put it.

15

The Supreme Court acknowledged that this questioning violated Miranda, but
went on to carve out an exception to the Miranda rule.

16 police, in this case, in the very act of apprehending a suspect, were confronted
The
with the immediate necessity of ascertaining the whereabouts of a gun which they
had every reason to believe the suspect had just removed from his empty holster and
discarded in the supermarket. So long as the gun was concealed somewhere in the
supermarket, with its actual whereabouts unknown, it obviously posed more than
one danger to the public safety: an accomplice might make use of it, a customer or
employee might later come upon it.
17

Id. at 657, 104 S.Ct. at 2632. The Court recognized that the administration of
the Miranda warnings in this situation might deter some people from
answering. It reasoned that, while "when the primary social cost of those added
protections is the possibility of fewer convictions, the Miranda majority was
willing to bear that cost," id., under the circumstances of this case, "the need for
answers to questions in a situation posing a threat to the public safety outweighs
the need for the prophylactic rule protecting the Fifth Amendment's privilege
against self-incrimination." Id. It is also clear that the exception applies not only
to protect the public safety but also police safety as well, and that the exception

is not to be analyzed in light of the subjective motive of the questioner but

rather from the objective perspective of the presence of a public danger. Id. at
655-56, 659, 104 S.Ct. at 2631-32, 2633.
18

Thus, Quarles stands for the existence of a

19
'public
safety' exception to the requirement that Miranda warnings be given before a
suspect's answers may be admitted into evidence, and that the availability of that
exception does not depend upon the motivation of the individual officers involved.
20

Id. at 655-56, 104 S.Ct. at 2631-32. In the present case, the question is whether
this "public safety" exception prior to the administration of the Miranda
warnings should be recognized after Miranda warnings are given and the right
to counsel claimed. Only one circuit has addressed this question. In United
States v. DeSantis, 870 F.2d 536 (9th Cir.1989), the Ninth Circuit, faced with
facts quite similar to those of the present circumstances, examined the
reasoning behind Quarles regarding the concern for public safety and stated
that

21 reasoning would apply with equal force to the procedural safeguards

[t]his
established when the accused asks for the aid of counsel. Society's need to procure
the information about the location of a dangerous weapon is as great after, as it was
before, the request for counsel.
22

Id. at 541. It therefore held that, absent evidence of actual coercion by the
arresting officers, such questions should not be suppressed. Id.

23

We agree with the Ninth Circuit that the "public safety exception" to the
Miranda framework should be recognized under the present circumstances.
While the reasoning of Quarles is not on all points with the situation in which
the accused has claimed his right to counsel,1 the danger to the public and
police from hidden traps and discarded weapons is as evident after the Miranda
warnings have been given as before, and

24 same considerations that allow the police to dispense with providing Miranda
[t]he
warnings in a public safety situation also would permit them to dispense with the
prophylactic safeguard that forbids initiating further questioning of an accused who
requests counsel.
25

Id. For this reason, we hold that the public safety exception articulated in
Quarles will apply in an Edwards situation as well.

26

Nevertheless, it is imperative that the scope of this exception be recognized and

followed. Quarles is an exception to the Miranda rule, and its exceptive nature
is evident throughout the opinion. See, e.g., Quarles, 467 U.S. at 653 n. 3, 104
S.Ct. at 2630 n. 3 ("[W]e conclude today that there are limited circumstances
where the judicially imposed strictures of Miranda are inapplicable."); id. at
655, 104 S.Ct. at 2631 ("We hold that on these facts there is a 'public safety'
exception to the requirement that Miranda warnings be given before a suspect's
answers may be admitted into evidence...."). As an exception, it must be
construed narrowly. As the Quarles Court indicated, the "public safety"
exception applies only where there is "an objectively reasonable need to protect
the police or the public from any immediate danger associated with [a]
weapon." Id. at 659 n. 8, 104 S.Ct. at 2633 n. 8. Absent such circumstances
posing an objective danger to the public or police, the need for the exception is
not apparent, and the suspicion that the questioner is on a fishing expedition
outweighs the belief that public safety motivated the questioning that all
understand is otherwise improper.2

27

No such danger is apparent in the present case. As noted, Mobley was

encountered naked; by the time he was arrested, the FBI already had made a
security sweep of his premises, and they had found that he was the sole
individual present, and that the apartment was a residence for Mobley alone. As
he was being led away, an FBI agent asked him whether there were any
weapons present. These facts contrast sharply with those of Quarles, and we are
persuaded that they fall without, rather than within, the exception Quarles
recognized. There is nothing that separates these facts from those of an ordinary
and routine arrest scenario. There was no explanation at any time as to what
extraordinary circumstances prompted this question, and we must conclude that
there were none. Although we believe that the public safety exception is a valid
and completely warranted exception to the Miranda and Edwards rules, we are
persuaded that there was no demonstration of an "immediate need" that would
validate protection under the Quarles exception in this instance. Absent an
objectively reasonable concern for immediate danger to police or public, we
must follow the rule, not the exception.

B.
28

Because the questioning was in violation of Edwards, it remains for us to

consider whether the conviction can stand. We believe that it can.

29

Under the exclusionary rule, Mobley's answer to the FBI agent's questioning
regarding the presence of a weapon should not have been admitted at trial.
Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

Although the "fruit of the poisonous tree" doctrine would suggest that the gun
to which Mobley then led the police as a direct result of the questioning also
should not have been admitted, see Wong Sun v. United States, 371 U.S. 471,
83 S.Ct. 407, 9 L.Ed.2d 441 (1963), in this instance the FBI had a search
warrant for Mobley's residence and at least five agents were on hand to execute
the search. Both the government and Mobley agree that discovery of the gun
would have been inevitable. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81
L.Ed.2d 377 (1984).
30

Since Mobley's statement ultimately was introduced at trial, it remains for us to

determine whether the error was harmless beyond a reasonable doubt. United
States v. Khan, 993 F.2d 1368, 1376 (9th Cir.1993); United States v.
Throneburg, 921 F.2d 654, 658 (6th Cir.1990). In this instance, a review of the
evidence introduced at trial convinces us that the government has demonstrated
the harmlessness of the error. Mobley was the sole occupant of the apartment;
it was leased in his name, and only one parking spot was leased for it. Although
it was a two bedroom apartment, only one bedroom was furnished, and there
was no other location that could accommodate a sleeping individual. The gun
was located amid Mobley's sweaters in a clothes closet adjoining the single
utilized bedroom. Further, although Mobley attempted to demonstrate evidence
that the gun was placed in his belongings by a nephew during a recent visit, we
believe that the government's evidence also makes this theory untenable. Thus,
despite the violation of the Edwards rule, we believe the introduction of the
impermissible material was harmless beyond a reasonable doubt and that
Mobley's conviction as a felon in possession of a firearm must be affirmed.

III.
31

Defendants who are convicted as felons in possession of a weapon can, under

certain circumstances, be subjected to a significant mandatory minimum
sentence for being armed career criminals. Mobley's counsel presents a forceful
and well-stated argument, for which he should be commended, against the
appropriateness of imposition of a mandatory minimum sentence in the present
circumstances. Nevertheless, we believe a faithful adherence to the statute and
Supreme Court precedent disclose that such sentence was proper.

32

The text of the mandatory minimum statute is as follows:

33 the case of a person who violates section 922(g) of this title and has three
In
previous convictions by any court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, committed on occasions different
from one another, such person shall be fined not more than $25,000 and imprisoned

not less than fifteen years

....
34
35

18 U.S.C. Sec. 924(e)(1). The question is whether the defendant has the three
predicate acts required for the mandatory minimum to apply. In the present
case, the question is whether Mobley has committed three "violent felonies."
"Violent felony" is defined as:

any crime punishable by imprisonment for a term exceeding one year ... that-36
37 has as an element the use, attempted use, or threatened use of physical force
(i)
against the person of another; or
38 is burglary, arson, or extortion, involves use of explosives, or otherwise involves
(ii)
conduct that presents a serious potential risk of physical injury to another.
39

18 U.S.C. Sec. 924(e)(2)(B).

40

Mobley has only three relevant convictions, all from the District of Columbia in
the mid- to late-1970s. The first conviction, in 1975, was for assault with intent
to rob. He concedes that this meets the definition of subpart (i) of the definition.
His remaining two convictions, in 1975 and 1978, were for violation of
D.C.Code Sec. 22-2901, which, at the relevant time, stated:

41
Whoever
by force or violence, whether against resistance or by sudden or stealthy
seizure or snatching, or by putting in fear, shall take from the person or immediate
actual possession of another anything of value, is guilty of robbery, and any person
convicted thereof shall suffer imprisonment for not less than two years nor more
than fifteen years.
42

As the district court recognized, see United States v. Mobley, 818 F.Supp. 164,
165 (E.D. Va.1993), the definition facially appears to fall within the scope of
subpart (i) because of the requirement of "force or violence." The "force" the
D.C. statute requires, however, as the district court also noted, is merely the "de
minimis force directed at the stolen property rather than force directed at the
person of the victim" necessary to remove the property from its place. Id. Thus,
the statute does not fall within subpart (i) because it does not have as an
element "the use, attempted use, or threatened use of physical force against the
person of another."

43

The court then proceeded to determine that Mobley's offense fits within subpart

(ii). Mobley objects to that determination. In his mind, subpart (ii) applies only
to property crimes rather than crimes against the person:
44 intent of the Congress was to broaden the classification of violent felonies,
The
including property crimes. Congress specified several property crimes, burglary,
arson, or extortion, involving the use of explosives and then added language
intended to be applied to other property crimes that presented serious potential risk
of physical injury to another.
45

Appellant's Br. at 14. Mobley cites United States v. Mathis, 963 F.2d 399
(D.C.Cir.1992), in support of his position. In that case, the District of Columbia
Circuit, construing the same D.C. statute that is before this court, interpreted
subpart (i) to include "felonies against the person that have as an element the
use or threat of physical force," id. at 405 (emphasis in original), while subpart
(ii) includes only "felonies against property (such as burglary, arson, extortion,
etc.) that present a serious potential risk of physical injury." Id. (emphasis in
original).

46

It also should be noted that this court gave this approach support in brief dicta
in United States v. Headspeth, 852 F.2d 753 (4th Cir.1988), a case that was
later overruled by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109
L.Ed.2d 607 (1990). Headspeth required the court to determine whether
storehouse breaking under Maryland law fit within the violent felony definition.
Because the statute clearly was not within subpart (i), the court scrutinized
subpart (ii). After detailing the legislative history of the provision, particularly
as to the robbery language,3 the opinion lays out the present language of Sec.
924(e)(2)(B), and then notes that

47 Sec. 924(e)(2)(B)(ii) catch-all, which permits certain felonies against property

[t]he
to serve as the basis for sentence enhancement, was designed to satisfy the
proponents of H.R. 4639, while the limitations of that provision to crimes which
present a serious risk of injury to the person was a concession to those who favored
H.R. 4768.
48

Headspeth, 852 F.2d at 758 (emphasis supplied).

49

Since Headspeth, however, the Supreme Court weighed in with Taylor v.

United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That
case addressed the same question as Headspeth, i.e., how to determine whether
a state burglary statute meets the "burglary" provision of subpart (ii). The Court
agreed that it would be unfair simply to rely on the fact that a state called
something burglary, since different states define that crime differently; instead,

the Court attempted to formulate a "generic" burglary definition against which a

state statute, or the indictment or jury charge in a particular case, could be
measured. Taylor argued for a "generic" definition of burglary that included as
an element necessary for conviction conduct that presents a serious risk of
physical injury to another, tracking the language of subpart (ii)'s catch-all. The
Court squarely rejected that approach, reasoning that it would make the
enumerated crimes of subpart (ii) mere surplusage. According to the Court, "if
this were Congress' intent, there would have been no reason to add the word
'burglary' to Sec. 924(e)(2)(B)(ii), since that provision already includes any
crime that 'involves conduct that presents a serious potential risk of physical
injury to another.' " Id. at 597, 110 S.Ct. at 2157 (emphasis in original). It is
important to note that the Court stated that it was not just property crimes that
fall within the catch-all, but rather "any crime"; and it underlined the any,
which suggests that it was not a mere slip of the tongue in throwaway dicta.
50

We note that a straightforward reading of the statute indicates such a result.

The statute defines violent felony as:

any crime ... that-51

52 is burglary, arson, or extortion, involves use of explosives, or otherwise involves
(ii)
conduct that presents a serious potential risk of physical injury to another.
53

While it is possible to infer a property restriction into the structure of the

statute, a plain reading of the words suggests that it covers any crime of various
enumerated types, and also those crimes of whatever variety that involve
conduct that presents a serious potential risk of physical injury to another.

54

Given this construction, it is necessary to determine whether pickpocketing fits

the definition. "[T]he courts must necessarily make common-sense judgments
about whether a given offense proscribes generic conduct with the potential for
serious physical injury to another." United States v. Custis, 988 F.2d 1355,
1363 (4th Cir.1993), aff'd on other grounds, --- U.S. ----, 114 S.Ct. 1732, 128
L.Ed.2d 517 (1994). In Custis, the court held that attempted breaking and
entering met that requirement because of the "substantial risk of confrontation"
inherent in such a crime involving a dwelling. Id. at 1363-64.

55

Similarly, we believe that insofar as the D.C. statute outlaws pickpocketing "by
sudden or stealthy seizure or snatching ... from the person or immediate actual
possession of another," the offense has the requisite potential for serious
physical injury to another. As the quotation indicates, the statute requires that
the taking be "from the person or immediate actual possession of another."

Thus, whenever the pickpocketing fails and the criminal is detected, a

confrontation is likely, and the stealthy pickpocketing can progress into
something far uglier. This is not an abstract hypothetical, as Mobley discloses
in his brief:
56 fact, two of the three predicate offenses used by the District Court below were
In
crimes which were initiated as pickpocketing offenses, but developed, at least in one
instance, into a robbery offense.
57

This concession points up the fact that the crime is one that can be considered
to "present a serious risk of physical injury to another." This being the case, we
believe that the armed career criminal provision applies in these circumstances
and that we must affirm Mobley's sentence.

IV.
58

For the reasons set forth above, we affirm.

59

AFFIRMED.

60

ALEXANDER HARVEY, II, Senior District Judge, concurring in the

judgment:

61

I am in agreement with the majority that appellant's conviction and sentence

should be affirmed. I fully concur with the majority's conclusion in Part III of
the opinion that the armed career criminal provision applies in the
circumstances here and that Mobley's sentence should be affirmed. I would also
affirm the judgment of conviction, but for reasons different from those set forth
in the opinion.

62

I do not believe, as the majority has held in Part II-A of the opinion, that New
York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) should
be construed as narrowly as indicated nor that the questioning of Mobley by the
FBI agent was in this case in a violation of Edwards v. Arizona, 451 U.S. 477,
101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). I would therefore affirm the district
court's denial of Mobley's motion to suppress his statement and would affirm
this conviction on that ground rather than on the ground of harmless error.

63

Although Quarles is an exception to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966), it is an important one when considered in terms
of police and public safety. As stated in Quarles, the doctrinal underpinnings of

Miranda do not require "that it be applied in all its rigor to a situation in which
police officers ask questions reasonably prompted by a concern for the public
safety." 467 U.S. at 656, 104 S.Ct. at 2632. As noted in Quarles, "police
officers can and will distinguish almost instinctively between questions
necessary to secure their own safety or the safety of the public and questions
designed solely to elicit testimonial evidence from a suspect." 467 U.S. at 658659, 104 S.Ct. at 2633. The Quarles exception was defined in the following
terms:
64 exception which we recognize today, far from complicating the thought
The
processes and the on-the-scene judgments of police officers, will simply free them to
follow their legitimate interests when confronting situations presenting a danger to
the public safety. Id. at 659, 104 S.Ct. at 2633.
65

As the majority has held, the Quarles exception applies only where there is "an
objectively reasonable need" to protect the public or police. In this case, the
trial court, after receiving evidence and hearing argument on Mobley's motion
to suppress, determined that there was indeed an objectively reasonable need
for protection of the agents making the arrest and of the public. Special Agent
Martin testified at the suppression hearing that she directed her question to
Mobley because she feared that there might be weapons or booby traps in the
apartment which could harm the agents during the search. As she testified, it is
not uncommon for a crack cocaine dealer to retain a booby trap type weapon in
his apartment to protect against one who might try to burglarize him. 1 In
holding that the Quarles exception applied, the district court specifically found
that the agent knew that drug dealers do booby trap their apartments so that
they can protect their stash of drugs and cash and that the agent, because of her
own safety and her desire to protect other agents from firearms, addressed the
question to Mobley to ascertain whether there were weapons or other dangerous
firearms in the apartment. These findings were not clearly erroneous and would,
I believe, support the district court's determination that an objectively
reasonable need existed here to protect the police and the public from danger
resulting from firearms or weapons being in the apartment.

66

This Court and other courts have long recognized that drug dealers use firearms
to protect their narcotics and the large amount of cash in their possession. In
United States v. Kennedy, 32 F.3d 876, 882 (4th Cir.1994), this Court said:

67 begin with, "the law has 'uniformly recognized that substantial dealers in
To
narcotics possess firearms' " and that "entrance into a situs of drug trafficking
activity carries all too real dangers to law enforcement officers." [United States v.]
Bonner, 874 F.2d at 824, 827 [(D.C.Cir.1989)] (quoting United States v. Payne, 805

F.2d 1062, 1065 (D.C.Cir.1986)); see also Singer, 943 F.2d at 763 (noting the
"federal judiciary's recognition that firearms are an integral part of the drug trade").
68

See also, United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir.1993) ("Guns
are a ubiquitous part of the drug trade, facilitating transactions by providing
protection to dealers, drugs and money."); United States v. Young-Bey, 893
F.2d 178, 181 (8th Cir.1990) ("The presence and availability of firearms are
often crucial to the 'sources' of the drug enterprise."); United States v. Wiener,
534 F.2d 15, 18 (2d Cir.) ("Experience on the trial and appellate benches has
taught that substantial dealers in narcotics keep firearms on their premises as
tools of the trade"), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80
(1976).

69

I would agree with the majority that Quarles does not compel a per se approach
and that each case must be examined on its own facts to determine whether the
exception is justified. But in this particular case, as in Quarles, "we have before
us no claim that [appellant's] statements were actually compelled by police
conduct which overcame his will to resist." 467 U.S. at 654, 104 S.Ct. at 263031. No evidence was presented at the suppression hearing that the agents were
conducting a fishing expedition or were otherwise attempting to avoid the
strictures of Miranda. Certainly, if evidence of this sort were credited by a trial
court, the Quarles exception should not be applied.

70

The majority opinion cites with approval United States v. DeSantis, 870 F.2d
536 (9th Cir.1989), but adopts as the law of this Circuit a much narrower rule
than that recognized by the Ninth Circuit. As the majority opinion notes, the
Ninth Circuit in that case was faced with facts quite similar to those here. Based
on circumstances similar to those before the district court in this case, the Ninth
Circuit viewed the totality of the facts objectively and, concluding that the
agent's question was not intended to elicit testimonial evidence but rather to
secure the officer's own protection, held that the statements and the firearm
were properly admitted into evidence at the trial. 870 F.2d at 541. I would
follow DeSantis in its entirety and would, as did the Ninth Circuit in that case,
affirm the trial court's denial of the defendant's suppression motion.

71

Except as discussed herein, I am in agreement with the remainder of the

majority opinion, and I therefore join in holding that Mobley's conviction and
sentence should be affirmed.2

The opinion in Quarles is rather narrowly tailored; central to its reasoning was

that the administration of Miranda warnings would possibly deter the person in
custody from responding to a question prompted by concerns for public safety,
thus justifying the exception to the Miranda requirement. Of course, the
deterrence approach is not applicable once the Miranda warnings have been
given
2

The government suggests in the proceedings below and on appeal what

approaches a per se position as to questioning people in custody on narcotics
charges. Absent other information, a suspicion that weapons are present in a
particular setting is not enough, as a general matter, to demonstrate an
objectively reasonable concern for immediate danger to police or public; each
case must be examined on its own facts to determine whether the deviation
from the standard rule is justified by the totality of the circumstances in which
the questioning takes place. Such an approach, which clearly follows the lead
of Quarles, should fairly balance the general need to bolster Fifth Amendment
rights through a faithful adherence to the prophylactic rules of Miranda while
recognizing the exceptional circumstances that will justify the occasional
departure in order to protect police and public alike from objectively reasonable
danger of harm

The law originally only made robbery and burglary predicate offenses, and
included a definition for each. That law was later repealed and replaced with the
current provision, which does not include any definitions for the enumerated
crimes (burglary, arson, extortion). What "sort" of burglary fit within subpart
(ii) thus became a major concern in the courts, and led the Supreme Court to
enter the fray in Taylor

Although Mobley was later acquitted when the narcotics charges came on for
trial, the agents clearly had probable cause to believe that he had drugs and
money on his premises connected to a large scale crack cocaine operation

In particular, I agree that even if Mobley's response to the agent's questioning

had been erroneously admitted at trial, the error was harmless beyond a
reasonable doubt